Here’s The FCC’s Language Asking For Comment On Banning “Pay-For-Priority Service”

After much sturm und drang, the Federal Communications Commission this morning voted to proceed on a set of controversial net neutrality rules. The proposed regulations now enter a four month comment period. Expect there to be shouting.

This morning the FCC voted to move forward with a set of proposed rules to collect public response. Most controversial in the proposals is the potential for the legal codification of paid prioritization agreements that would allow so-called edge providers — content companies, etc — to sign contracts with ISPs that could see their bits delivered more quickly than those of other companies.

The proposed rules would set a floor, by my reading, under which regular ISP customers wouldn’t be allowed to fall in terms of access, with blocking and slowing banned. But the FCC’s proposed ruleset isn’t in the business of setting a ceiling, at least in its current format.

The FCC’s Notice of Proposed Rule Making was released after the vote, tipping the scales at nearly 200 pages. The section on potentially allowing for broadband providers to apply “commercially reasonable” tests to contracts with content companies and the like isn’t short itself. As the FCC points out, its “proposed approach” might “permit broadband providers to serve customers and carry traffic on an  individually negotiated basis,” in a way that would be not be held to other rules that force non-discrimination.

After asking for input regarding potential harm stemming from such agreements, the FCC asks if it should ban outright pay-for-speed, noting potential regulatory authority issues:

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At issue in the above is that such agreements are currently legal. As Ars Technica wrote earlier today:

As Commissioner Mignon Clyburn said during today’s meeting, there are no rules at all against Internet service providers blocking traffic or prioritizing some content over others. That’s because a federal appeals court this year overturned the FCC’s previous net neutrality order, issued in 2010.

While the FCC’s latest proposal doesn’t specifically authorize fast lanes, it didn’t have to: they’re already legal. ISPs can charge Web services like Netflix (“edge providers” in regulatory parlance) for a faster path to consumers over the last mile of the network because there aren’t any enforceable rules against it.

The important thing is that today’s proposal apparently doesn’t ban fast lanes.

That’s correct. Might the proposal to ban paid prioritization manage to become the rule? I’d say momentum on the government side of things is opposed to the idea. Happily, perhaps, the Internet industry — aside from technology firms with a potential financial upside in paid prioritization — is mostly opposed to the idea. And technology is incredibly cash rich at the moment.

Regarding the larger set of proposed rules, you should read at least a few dozen pages for flavor. You’ll certainly see endless digests over the next few days, but spending some time with the source material is always a good choice.